Private: Prof. Bartrum: Wobbly Legal Efforts Unlikely to Take Down Health Care Law

This post is part of an ACSblog symposium marking the one-year anniversary of the Affordable Care Act.

The opponents of reform are still feverishly working to defeat the Affordable Care Act (ACA), a year after its enactment, and their efforts echo unsuccessful actions of the past to scuttle significant civil and social laws, Drake University Law School Professor Ian Bartrum writes in a column for the Des Moines Register.

"But just as some obstructionists challenged the constitutionality of the Civil Rights Act in the 1960s, there are those today who hope they can get the courts to revisit an argument that they lost in the political branches," Bartrum writes.

One of the reform opponents' favorite targets of the ACA is the provision set to take effect in 2014 that requires certain Americans to maintain health care insurance or pay a small tax. The opponents, such as the law professor Randy Barnett, loudly warn that if the federal government can require individuals to maintain health insurance then there will be no limits to its power. We'll all be faced with an out-of-control federal government issuing mandates forcing people to eat healthy foods, purchase gym memberships and limit television and Internet usage to a few hours a year, the opponents declare.

Bartrum, however, says the scare tactics failed in the past, and they'll likely meet the same fate today.

He notes:

The ‘individual mandate' requires those without health coverage through their jobs, who are above the federal poverty line, either to buy a minimum level of health insurance - at a rate not more than 8 percent of their monthly income - or to pay a fairly small tax. So in practical terms, the mandate is not all that onerous; but it is critically important. Because the law prevents insurers from discriminating against people based on pre-existing conditions, it must ensure that people do not simply wait until they get sick to buy coverage. But it's clearly not practical effects that matter to health care opponents; they see this as a political opportunity to revive a battle over the scope of congressional power that ended nearly a century ago.

Constitutional Interpretation, Economic Inequality, Supreme Court